A no-nonsense judge looks at the Flynn prosecution

Emmet Sullivan has always been a no-nonsense judge. He was no-nonsense in the late 1980s when, in his capacity as a D.C. Superior Court judge, he presided over a case I was handling.

He didn’t preside long. Instead, he tossed the case on our motion for summary judgment. His opinion was brief, to the point, and affirmed unanimously by the D.C. court of appeals.

Judge Sullivan was no-nonsense in his treatment of the prosecutors in the case of Sen. Ted Stevens. He took the extraordinary step of dismissing the ethics conviction of Stevens and naming a special prosecutor to investigate the conduct of the government lawyers who prosecuted the case.

Judge Sullivan, a Clinton appointee to the federal bench, has been no-nonsense in his handling of litigation brought by Judicial Watch in connection with the Hillary Clinton email scandal. We reported on some of the developments in that case here and here.

There’s no mystery about what happened to Flynn. Towards the end of the Obama administration, this decorated General and top intelligence official left the government and became the leading critic of the administration’s national security policy.

Compounding his offenses against the deep state, Flynn joined the Trump campaign team. At the Republican National Convention, he turned his speech into, in effect, a pep rally. During that rally, the crowd chanted “LOCK HER UP. “HER,” of course, was Hillary Clinton. Flynn seemed fine with the chanting.

For the deep state, this was the last straw. Once Flynn was named Trump’s national security adviser, it sought revenge. James Comey and Andrew McCabe contrived to sucker him into making false statements to the FBI. (In addition to resenting Flynn’s role in the campaign to defeat his favored presidential candidate, McCabe might also have had other grievances against the new national security adviser.)

When it interviewed Flynn, the FBI agents, one of whom was Peter Strzok, had heard a tape of Flynn’s phone conversations with the Russian ambassador. The agents asked him about the contents of the conversations.

Because the agents knew the contents, it was unnecessary to ask Flynn about them. The purpose of the interview surely was to see if Flynn would lie.

Flynn says that, to assist the FBI in its entrapment scheme, McCabe encouraged him not to have a lawyer present during the interview. Flynn also says the FBI agents did not instruct Flynn that any false statements he made could constitute a crime. They also did not confront him directly with the fact that he was contradicting what they had heard him say on tape. Flynn thus lost the opportunity to correct his statements.

As I understand it, the FBI had no legal obligation to do these things. However, if their interest was in learning the truth, rather than entrapping Flynn, they would have at least made it clear to him what the stakes of the interview were.

The FBI claims it didn’t make this clear because its agents wanted Flynn to be “relaxed.” This sounds like a nice-sounding way of admitting the agents wanted to trap him.

It’s also worth noting that the FBI’s approach to the Flynn interview differs from relevant past practice. When the FBI interviewed Hillary Clinton, she brought along nine lawyers. James Comey testified that this number was “unusual but not unprecedented.”

When FBI agents interviewed George Papadopoulos, who later pleaded guilty to making false statements, they advised him that lying to them is a federal offense and that he could get “in trouble” if he did not tell the truth. This interview took place just a few days after FBI agents interviewed Flynn. Again, Flynn received no such warning.

Did Flynn lie to the FBI? It’s clear that he made untrue statements about his talks with the Russian ambassador. But to be guilty of a crime, Flynn had to have intentionally told falsehoods.

Based on their impression of Flynn’s demeanor, the FBI agents who interviewed him thought Flynn was NOT lying. On the other hand, Flynn admitted to lying when he entered his guilty plea. But Flynn was under extreme duress when he agreed to the plea. Attorneys’ fees were bleeding him dry and Team Mueller reportedly was threatening to go after Flynn’s son.

Andy McCarthy weighs the evidence and concludes that Flynn did lie. Maybe he did, maybe he didn’t. It strikes me as doubtful that prosecutors could have persuaded a fair-minded jury that, beyond a reasonable doubt, Flynn lied.

Team Mueller has told Judge Sullivan that Flynn should serve no jail time. Does this move stem from the goodness of Mueller’s heart? Or is it an attempt to move on and avoid the wrath of this no-nonsense judge? I suspect it’s the latter.

Another possibility is that he accepts the plea and blasts the prosecutors. But doing so probably won’t slow Mueller down. He’ll take whatever dressing down comes his way and move on.

What if Judge Sullivan borrows from his Ted Stevens playbook and names a special prosecutor to investigate the conduct relating to the Flynn prosecution? That’s an intriguing possibility, but probably a remote one. It seems unlikely that irregularities regarding Flynn’s case rise to the level of the ones that Sullivan found so problematic in the Stevens case.